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A New York criminal court ruled that prosecutors seeking information about a defendant’s Internet activity can subpoena third-party online service…

Posted on July 3, 2012

A New York criminal court ruled that prosecutors seeking information about a defendant’s Internet activity can subpoena third-party online service provider Twitter. The request is not a government intrusion under the Fourth Amendment, he held, but a federal law requires a search warrant for some recent information.

The decision, released over the weekend, forces the micro-blogging social media service to disclose Malcolm Harris’ tweets and user information from a nearly three-month span relevant to his Oct. 1 arrest. The ruling indicates that “there can be no reasonable expectation of privacy in a tweet sent around the world.”

Judge Matthew A. Sciarrino Jr. of the New York City Criminal Court in Manhattan found that public tweets – even if later deleted, as some of Harris' were – are therefore public comments, which means their author does not enjoy the same constitutional protections as an individual who engages in private speech.

“If you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy. There is no proprietary interest in your tweets, which you gifted to the world,” Sciarrino wrote, finding narrow distinctions between different types of online communications and their associated privacy rights. “This is not the same as a private e-mail, a private direct message, a private chat, or any of the other readily available ways to have a private conversation via the internet that now exist.”

Harris, along with several hundred other activists, was charged with disorderly conduct last fall after marching on the Brooklyn Bridge during an Occupy Wall Street protest. The New York County District Attorney’s Office said it believed Harris’ Twitter activity would show the protestor was aware he was not supposed to walk on the roadway, disproving his anticipated defense.

“The prosecutors are seeking to nail a mouse with a sledgehammer,” said Martin R. Stolar, Harris’ attorney, in an interview. “[The decision] is really very last century.”

In accordance with its terms of service, Twitter notified Harris of the subpoena’s existence and submitted a motion to quash the order, which was denied.

“Twitter's Terms of Service make absolutely clear that its users own their content,” said Ben Lee, legal counsel for Twitter, in a prepared statement. “Our filing with the court reaffirms our steadfast commitment to defending those rights for our users.”

Harris also attempted to challenge the subpoena, arguing that he had a “proprietary interest” in his tweets, since he posted them online through Twitter. But the trial court ruled on April 20 that Harris did not have standing to intervene in the order because it found that the social media website – and not its user – owns the content in question.

The ruling suggests that in similar cases, third-party online service providers such as Twitter might have to take on the burden of fighting countless legal battles to defend their millions of users’ speech and privacy rights, said Aden Fine, a senior staff attorney at the American Civil Liberties Union’s Speech, Privacy and Technology Project.

“Users should be able to go to court to protect their constitutional rights,” said Fine, who filed a friend-of-the-court brief to support Harris’ fight to keep his online activity private.

In court, Twitter argued Sciarrino should take into account a U.S. Supreme Court ruling from this year, which found in United States v. Jones that attaching a GPS device to a vehicle to track its movements constitutes a search under the Fourth Amendment.

In his June 30 trial court ruling, Sciarrino applied the Stored Communications Act, a federal law that addresses the disclosure of stored electronic communications by third-party websites, after finding no governmental intrusion under the Fourth Amendment. Under the SCA, he held that content less than 180 days old – which in this case concerns Harris’ tweets from Dec. 31 – can only be obtained through a search warrant.

"We are pleased that the court has ruled for a second time that the tweets at issue must be turned over,” said Chief Assistant District Attorney Daniel R. Alonso in a press release. “We look forward to Twitter's complying and to moving forward with the trial."

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